Applicants v Respondent

2 Shirley's father and step-mother now seek compensation pursuant to the provisions of s 85B(1) of the Sentencing Act 1991 ('the Act').[1]

3 The claims are made pursuant to s 85B(2) for an amount for pain and suffering experienced by them as a direct result of the offence.

4 There is no dispute that the applicants are victims falling within the definition contained in s 3 of the Act. That definition includes a person who has suffered grief, distress, trauma or other significant adverse effect as a direct result of the offence, whether or not that consequence was reasonably foreseeable by the offender.

5 In turn s 85A relevantly defines injury to include:

d) grief, distress or trauma or other significant adverse effect;[2]

6 The fundamental matter in dispute is what quantum of compensation should be awarded. Ultimately counsel for the applicants sought compensation in the sum of $150,000 for each applicant. Counsel for the offender submit that this claim is excessive.

7 The purpose of s 85B is to provide for compensation to victims and not to further punish offenders.

8 The Court may take into account the effect of an award upon the financial circumstances of the offender and the nature of the burden that its payment will impose.[3]

9 In the present case the offender has assets in the sum of $107,000 which have been restrained.[4] He also claims to be the beneficial owner of fifty percent of a flat in the Queen Victoria Hospital Redevelopment, which is held by the personal representatives of Shirley's estate as registered proprietors. The net value of that asset is not established by evidence before the Court, but it is apparent that it potentially adds a figure of some hundreds of thousands of dollars to the offender's assets. The property was purchased for $244,500 in 2005. It is understood to be the subject of a bank mortgage which has in turn been the subject of payments from rental monies received.

10 The claim relating to the flat is the subject of separate civil proceedings. It is not possible to resolve the matters in issue in those proceedings for the purpose of determining this application. Nevertheless s 85H(2) of the Act provides as follows:

A court is not prevented from making a compensation order only because it has been unable to find out the financial circumstances of the offender.

11 Counsel for the parties agreed before me that I should proceed to determine this matter having regard to the potential range of (but not yet established) value of the offender's assets.

12 In RK v Mirik and Mirik,[5] Bell J surveyed general principles applicable to an application of this kind. In summary they are as follows:

• The determination of the amount of compensation to be paid to an applicant is entirely within the discretion of the Court provided that the claims fall within categories set out under s 85B(2).[6]

• An order for compensation is determined by the application, where relevant, of common law principles,[7] however the order itself is one for compensation not damages.[8]

• Where a claim for pain and suffering is maintained, it must be a direct result of the offence.[9]

• The Act does not permit an award for either aggravated or exemplary damages which may be sought in a separate civil claim.[10]

• Expenses, medical or otherwise, actually incurred and reasonably likely to be incurred may be the subject of a compensation order.[11]

• Unlike a common law claim for damages the financial circumstances of the offender are relevant.[12]

• A court is not obliged to reduce the amount of compensation payable on the basis of the offender's financial circumstances; it is a relevant but not controlling consideration.[13]

13 The words 'as a direct result of the offence' in s 85B of the Act do not mean that the consequence must be solely due to offence. The word 'direct' emphasises that the crime is to play a significant role in bringing about the compensable injury.[14] The question of causation must be judged as a matter of fact according to common sense and experience.[15]

14 At the date of Shirley's death she was 44 years old and the offender was 47 years old.

15 Shirley had a daughter, Alicia, born on 5 March 2003 who had just reached three years of age.

16 Shirley was killed in her own home by the application of manual force at a time when the offender was living in a sexual relationship with her.

17 After killing Shirley the offender removed her body and buried it in a grave in bushland at Tallarook. He initially pretended Shirley had disappeared. Even after he was identified by surveillance video as the person who had removed Shirley's body from the scene of her death, he kept the place of her body concealed until an initial trial had progressed for some days before Coghlan J in October 2007.

18 The consequence of the concealment of the body was that it had substantially decomposed before it was recovered. This consequence was intended by the offender.

19 Evidence was called from both the applicants in support of their applications. That evidence was directed to the nature of their relationship with Shirley and the impact of her death upon them.

20 Mr Liang gave evidence that he is an old-aged pensioner aged 82.

22 Her mother died some years ago and he re-married the second applicant, Ms Zhu.

23 In 1997 Shirley sponsored the immigration of both the applicants to Australia.

24 They lived with her for approximately two years after arriving here. During this period they were entirely dependent on her financially. Subsequently she gave them ongoing personal and financial support.

25 On two occasions she paid for them to return to China for visits.

26 Whenever there was a festival they would have a meal together.

27 She also relied on them to help care for Alicia, who they picked up from kindergarten. They had the care of Alicia on a regular basis on a number of days per week.

28 Since Shirley died the applicants are financially dependent on the old-aged pension. They do not speak English (save to a very small degree) and do not have a car.

29 After Shirley's death the applicants cared for Alicia for six months. Alicia's father then took custody of her. Alicia now lives with her father and contact with her has broken down.

30 Mr Liang said in evidence that the holding of a proper funeral was an important Chinese custom. The disappearance of Shirley's body and the delay of 17 months which occurred after Shirley's death until her cremation caused him great distress.

31 He feels he now has no child to depend upon and that his family has suffered disgrace. He no longer has the possibility of a male heir to carry on the family name.

32 He did not attend the criminal trials of the offender because he was told his attendance was unnecessary. He has suffered from depression since Shirley's death.

33 The fact of his depression is corroborated by the medical report of Dr S O Chan dated 10 October 2006 which states that at that time both of the applicants were depressed as their daughter was missing and a police investigation was underway to determine where she was. Dr Chan commented that the outlook was bleak and they were very distraught. He noted that Mr Liang was very depressed. Mr Liang was not coping with the situation and had become very negative and aggressive at home. He could not control his emotional state and in Dr Chan's view was in need of psychological help.

34 Dr Chan also records that Mr Liang has osteoporosis and back pain from prolapsed lumbar vertebral discs which cause pain and difficulty with walking and standing and he also has fainting episodes.

35 It was put in cross-examination to Mr Liang that he did not have a close relationship with his daughter because he disapproved of her role in the prostitution industry. He agreed that he had expressed disapproval as to her involvement in prostitution, but he did not accept the proposition that he did not have a close relationship with her.

36 I accept his evidence. It seems to me that disapproval of Shirley's occupation was entirely consistent with paternal concern and affection. Disagreement in a relationship is not evidence of underlying estrangement.

37 Further, the objective facts of continuing support and contact between Shirley and the applicants, coupled with the lack of other siblings, strongly support the conclusion that Shirley was a significant family member from the applicants' point of view.

38 It was also suggested that Mr Liang's failure to attend either of the trials of the offender reflected a lack of concern for his daughter's death. I do not accept this. I accept that he followed what he understood to be the police direction and there are a number of obvious reasons why he may not have wished to attend the trial.

39 Additional evidence was called from a psychologist, Khai Wong, who had seen each of the applicants on two occasions and was able to speak to them in Cantonese, their first language. Ms Wong gave coherent and impressive evidence of the effects of Shirley's death upon her father. Regarding a counselling session in April this year, she stated in part:

Mr Liang attends the session with his wife Ms Ting Tai Zhu. I observe that he was cooperative and friendly and told the psychologist he took the tram to my counselling room and it is convenient to travel to the service. At the end of the initial session he recalled specific details about the grief, sorrow and traumatic experience during the initial period when he lost his daughter Ms Liang, now deceased. I observe his behaviour to have experienced severe pain quietly and had coped with the grief and self healing constructively. At the end of the session Mr Liang after saying that he has written many letters to the court he sighed with relief that the case is coming to a closure for him. At this point I observe his face was frozen, there was a drop of tear and he paused for a moment and did not talk any further. I observe there is a deep sadness (not distress) on his face.[16]

40 In Ms Wong's view Mr Liang's grief is continuing.

41 In cross-examination Ms Wong described Mr Liang's inability to readily talk about his daughter, coupled with the written statements he has made about the loss of Shirley, as demonstrating a way of honouring his daughter. The written statements tell how difficult it is for him to break away from thinking about his daughter. Ms Wong did not accept that the emotional effects of his daughter's death upon Mr Liang had been primarily associated with the diminution of his relationship with his grand-daughter. Ms Wong's view is however that to be heard by the Court in response to his current application will itself be healing for Mr Liang.

42 I should add Ms Wong stated the incidental view that Mr Liang expressed sadness and regret rather than anger at Ms Liang's job.

43 Ms Wong saw the applicants in April 2010 and I am satisfied Mr Liang has suffered very great and continuing grief which was aggravated by the protracted stress associated with the concealment of his daughter's body by the offender. He has suffered consequential ongoing depression as a result of his daughter's death and the circumstances associated with it.

44 Mr Liang was vulnerable to such effects because of his age, state of health, relative social isolation, reliance on Shirley and lack of other immediate family in Melbourne save for Ms Tzu.

45 I accept the fundamental truth of the following statement made in his victim impact statement (as translated):

I Gang Liang have depression and protrusion of the intervertebral disc. After my daughter was murdered my illness has further intensified and worsened. Needless to say I'm ill with deep anxiety and melancholy. I feel a double loss not only for my daughter but also my granddaughter Alicia as well. There are no successors to carry on the Liang name which is important in Chinese tradition.

I feel like throwing myself out of the window to put an end to this suffering.

The murder of my daughter has also affected my relationship with my wife. I am angry and lose control of myself and have fights with my wife.

46 I turn then to Ms Zhu. Ms Zhu has two daughters from her previous marriage, one of whom has been in Australia for the last two years. Nevertheless I accept that the murder of Shirley was emotionally traumatic for her. She had been supported both financially and personally by Shirley in coming to this country and had a close relationship with her. That relationship had developed particularly after Ms Tzu became involved in helping to care for Alicia.

47 Dr Chan records her as presenting as depressed in October 2006 when Shirley's body was still missing. Ms Zhu has osteoporosis of her spine with vertebral fractures which cause back pain and difficulty with movement. She is aged 73.

48 At the date of Shirley's death she was vulnerable because of her age, her state of health, her minimal command of the English language, and her social isolation.

49 Since Shirley's death Ms Zhu has had the sense that no-one is there to help her husband and herself on a continuing basis. Shirley is not there to visit them regularly and their life has lost interest. Ms Zhu suffers from feelings of panic and depression.

50 The psychologist, Ms Wong, also gave evidence about Ms Zhu. She described a history of fatigue and stress following Shirley's death which I find generally credible. She also describes psychological symptoms of pain and suffering including:

• feeling sad when thinking of Shirley's life and violent death;

• empathetic suffering when Mr Liang becomes angry;

• reliving memories and experiences of conversations she had with Shirley;

• preoccupation with thoughts of the tragic death of Shirley and grief and apprehension at the uncertain future of Alicia;

• clinical symptoms of depression such as loss of pleasure and interest;

• fear during the period after Shirley disappeared.

51 Ms Wong expresses the opinion that Ms Zhu has suffered deep bereavement and distress over the loss of her step-daughter. I accept this opinion.

52 Objection was taken to passages in Ms Wong's report which record statements by Ms Zhu asserting Shirley told her of violent conduct by the offender causing injury to Shirley prior to Shirley's death. No direct evidence was given of this hearsay by Ms Zhu and I accept Ms Kenny's submission that it should be excluded.

Payments under the Victims of Crime Assistance Act 1996

53 Both the applicants have received payments of $30,000 under the Victims of Crime Assistance Act 1996. Section 85I of the Sentencing Act 1991 requires the Court to reduce any amount of compensation by the amount of any award made under the Victims of Crime Assistance Act 1996.

54 I have been referred to a number of other decisions made under s 85A of the Sentencing Act 1991. Each case must of course turn on its own facts but I note the following matters:

• In Josefski v Donnelly & Ors,[17] the Court of Appeal accepted that it is proper for the trial judge to draw inferences from human experience as to the probable effects of their experiences upon applicants when assessing the evidence before the Court as a whole.[18] Judges of the Trial Division have on a number of occasions taken into account the circumstances of a murder in assessing the likely impact on close relatives.[19]

• There is no yardstick by which the extent of personal grief or distress can readily be measured and no method of direct conversion of human emotional or psychological reaction to an amount of money.[20]

• As Neave JA observed in DPP v Energy Brix Australia Corporation Pty Ltd,[21] the factors which should be taken into account in assessing compensation for grief and emotional trauma under s 85B include the following:

o the effect on the applicant on hearing of the events causing loss;

o the closeness of the relationship between the person seeking compensation and the person who has been killed;

o the extent of grief and psychological suffering experienced as a result of the loss.

55 In the present case, the first two factors are aggravated by the protracted suffering which was inflicted upon the applicants by the concealment first of Shirley's death and then of her body.

56 Having regard to all the circumstances of the case including the offender's financial situation, I assess compensation for pain and suffering in respect of Mr Liang in the sum of $120,000. I assess compensation for compensation in the case of Ms Zhu in the sum of $60,000.

57 In so finding I acknowledge that when released from the term of imprisonment to which I have sentenced him, the offender will have limited earning capacity and may have minimal assets. Nevertheless in the present case the claims of the applicants outweigh these considerations. If the offender succeeds in his civil claim, the awards I propose will not exhaust his present assets. If he fails in that claim despite the potential consequences for the offender), then the amounts I have awarded are in my view the minimum which it would be proper to award having regard to the pain and suffering which the applicants have endured and continue to suffer .

58 I have awarded Mr Liang more substantial compensation than Ms Zhu first because of his more direct relationship with Shirley; secondly, because of the fact that Ms Zhu has two surviving daughters; and thirdly, because I find that for cultural and personal reasons his grief has been, and will continue to be, more extreme.

59 The amounts received by way of compensation pursuant to the Victims of Crime Assistance Act 1996 must be deducted from the amounts I have assessed.

60 Accordingly, and subject to any submissions from counsel as to the appropriate form of order, I propose to order that:

(a) Neil Cameron Chalmers pay compensation to Gang Liang in the sum of $90,000; and

(b) Neil Cameron Chalmers pay compensation to Ting-Tai Zhu in the sum of $30,000.

[1] Sentencing Act 1991, s 85B(1):

it may, on the application of a person who has suffered any injury as a direct result of the offence, order the offender to pay compensation of such amount as the court thinks fit for any matter referred to in paragraphs (a) to (d) of subsection (2).

[2] Sentencing Act 1991, s 85A(1)(d).

[3] Sentencing Act 1991, s 85H.

[4] This sum is the subject of a forfeiture order which is the subject of appeal to the Court of Appeal.

[5] [2009] VSC 14, [15]-[20], [50]-[67], [135]-[142], [144]-[154]; see also DPP v Esso Australia Pty Ltd (No 2) [2001] VSC 401, (2001) 126 ACrimR 13.

[6] Sentencing Act 1991, s 85B(1).

[7] RK v Mirik and Mirik [2009] VSC 14, [148]; DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; (2006) 14 VR 345, 352, 356.

[8] Esso Australia Pty Ltd v Robertson [2005] VSCA 138, [21]-[30].

[9] Sentencing Act 1991, s 85B(2)(a).

[10] R v Mirik and Mirik [2009] VSC 14, [150]; Sentencing Act 1991, s 85L.

[11] Sentencing Act 1991, s 85B(2).

[12] Sentencing Act 1991, s 85H(1).

[13] R v Mirik and Mirik, [2009] VSC 14, [135]-[143].

[14] Kaplan v Lee-Archer [2007] VSCA 42; (2007) 15 VR 405, 411, [28], Buchanan JA.

[17] [2007] VSCA 6.

[18] Josefski v Donnelly & Ors [2007] VSCA 6, [22] per Nettle JA with whom Buchanan and Vincent JJA agreed.

[19] See, eg In Re Ian Mark Wathen [2007] VSC 80.

[20] DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116, per Vincent JA [36] with whom Buchanan and Neave JJA relevantly agreed.

[21] [2006] VSCA 116, [50].